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Adultery may not be cause of unhappy marriage, can be result: Quotes from SC’s 497 ruling

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The judgment delivered by Supreme Court was replete with observations that vindicated rights patriarchal societies have denied women for decades.

New Delhi: As the Supreme Court struck down Section 497 of the IPC, a sexist law on adultery, Thursday, Chief Justice of India Dipak Misra invoked an evocative analogy to emphasise the equality of women.

“…The essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than… in an annexe to the main building,” he wrote, penning the judgment for himself and Justice A.M. Khanwilkar.

A five-judge Constitution bench was unanimous in striking down the colonial-era law, which absolved men of guilt if they courted a married woman with her husband’s permission. Another controversial provision kept women out of the purview of punishment, with only men held accountable.

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In their judgments, the judges championed gender equality and lashed out at beliefs that held women as men’s property. Excerpts:

CJI Dipak Misra (Writing for himself & Justice A.M. Khanwilkar)

Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution.

Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception.

A woman cannot be asked to think as a man, or as how the society desires. Such a thought is abominable, for it slaughters her core identity.

It is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written.

What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded, and the rights that have been accentuated by the constitutional courts.”

At first blush, it may appear as if it (Section 497) is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ‘romantic paternalism’ which stems from the assumption that women, like chattels, are the property of men.

On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as chattel. It treats her as the property of man and totally subservient to the will of the master.

…We are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.

Treating adultery as an offence, we are disposed to think, would tantamount to the state entering into a real private realm.

Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result.

Thinking of adultery from the point of view of criminality would be a retrograde step. This court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression.

Justice Rohinton Nariman

It will be noticed that the crime of adultery punishes only a third party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is therefore punished as ‘adultery’ is not ‘adultery’ per se but the proprietary interest of a married man in his wife.

What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day and age, utterly irrational.

A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.

Also, we are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted.

Justice D.Y. Chandrachud

Over the years, legal reform has had a significant role in altering the position of women in societal orderings… However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation.

The Constitution, both in text and interpretation, has played a significant role in the evolution of law from being an instrument of oppression to becoming one of liberation.

A woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognised as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law.

In enacting Section 497, the legislature made an ostensible effort to protect the institution of marriage. ‘Ostensible’ it is, because the provision postulates a notion of marriage which subverts the equality of spouses.

Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute.

The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties. Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another.

Facially, the law may be construed to operate as an exemption from criminal sanctions. However, when viewed in the context of a social structure which considers the husband as the owner of the wife’s sexuality, the law perpetuates a deeply entrenched patriarchal order.

Also read: Husband is not master of wife: Supreme Court strikes down adultery law as ‘unconstitutional’

Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage. In restricting the sexual agency of women, Section 497 gives legal recognition to socially discriminatory and gender-based norms.

Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminally condemned.

Section 497 rests on and perpetuates stereotypes about women and sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity from women as the norm.

The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the lives of women for centuries.

Raising a woman to a pedestal is one part of the endeavour. The second part is all about confining her to a space. The boundaries of that space are defined by what a woman should or should not be. A society which perceives women as pure and an embodiment of virtue has no qualms subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide.

Justice Indu Malhotra

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalisation of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary.

Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

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  1. A woman may get drawn into an adulterous affair if she has an unhappy marriage. Some egoistic women may get into it just to “teach the husband a lesson” even for small discords in marriage. A woman can be very vindictive.

    Anyway, all these permutation-combination of reasons is applicable only for women. Men are simple folks — they are always game for hanky panky.

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